The following memorandum has been forwarded by the Acting Secretary to the Public Service Commissioner asking for advice:

In the course of a case recently heard before Mr Justice Ferguson in Sydney in which A.B., Clerk, 5th Class, Department of Defence, brought an action against the Commonwealth for the recovery of certain moneys alleged to be due to him His Honour directed the jury that the Chief Officer had exceeded his powers in depriving Mr B. of pay during suspension in addition to fining him the sum of £10 and that regulation 270A of the Commonwealth Public Service Regulations was not applicable in his case.

The circumstances of the case are that Mr B. was suspended and charged under section 46 of the Public Service Act with wilful disobedience of orders. He was found guilty by a Board of Inquiry, and it was decided by the Permanent Head, Department of Defence, that he was to be fined £10 and forfeit all pay during the period of suspension.

Regulation 270A (2) provides as follows:

Where the offence is admitted or proved the officer may be deprived of pay for the whole or any portion of the period of suspension, but in any such case the recommendation of the Chief Officer shall set forth, in addition to any other punishment proposed, the amount of pay of which it is intended to deprive the offender, and any such deprivation shall be regarded and recorded as part of the penalty ...

Section 46 (3) of the Public Service Act limits the power of the Chief Officer to a fine of £10, but under section 46 (5) the Permanent Head may, subject to the regulations, impose a penalty.

The Permanent Head of the Department of Defence exercises the powers and performs the duties imposed by the Public Service Act and the Regulations on Chief Officers-vide section 13 and regulation 48 (2).

Attention is invited to the opinion given by the Crown Solicitor on 29.7.08 in the case of C.D.E. an officer of the Postmaster-General's Department, New South Wales,that the Permanent Head may impose a penalty not exceeding £50, and it would appear that in fining Mr B. £10 and depriving him of pay during the period of suspension the Permanent Head (who also exercises the powers of a Chief Officer) of the Defence Department was acting within his rights.

The view of Mr Justice Ferguson has apparently been expressed without reference to sections 13 and 46 (5) or regulation 48 (2) and the Acting Commissioner would be glad to be favoured with advice in the matter.

In this case the charge against Mr B. had been investigated by a Board of Inquiry and he had been found guilty.

The power to impose a penalty in such case is contained in section 46 (5) of the Act: ' . . . then on the recommendation of the Chief Officer the Permanent Head may subject to the regulations impose a penalty upon such offending officer or may deprive him of his leave of absence . . . '

In this case therefore it was the function of the Chief Officer to recommend, and the Permanent Head to impose, a penalty.

The powers of the Chief Officer to inflict punishment are provided in section 46 (3) and are to be exercised in cases where the Chief Officer is of opinion that the alleged offence has been committed, but is not sufficiently serious to warrant investigation by a Board of Inquiry, and in such cases the punishment is limited to a fine of £10.

In spite of the fact that in the case under consideration the Secretary, Department of Defence, is both Chief Officer and Permanent Head, in my opinion, he cannot, as Chief Officer, purport to exercise the functions of the Permanent Head and the imposition of any penalty under section 46 (5) must be by the Permanent Head.

I am therefore of opinion that the Chief Officer, acting as such, has no power under section 46 to impose a penalty exceeding that provided by section 46 (3), viz. a fine of £10.